E-Filed Document Apr 28 2016 19:23:00 2014-CA-01006-COA Pages: 11 IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO. 2014 CA-01006-Brenda Franklin v. Cornelius Turner BRENDA FRANKLIN Appellant/Plaintiff vs. CORNELIUS TURNER, Appellee/Defendant. APPEAL FROM THE CIRCUIT COURT OF RANKIN COUNTY MOTION FOR RECONSIDERATION 1
TABLE OF CONTENTS TABLE OF CONTENTS... 2 TABLE OF AUTHORITIES.......3 ARGUMENT... 4 1. The Court of Appeals should reconsider its decision, because it weighed evidence...4 2. The other tenant s statement creates a dispute of material fact..6 3. The Court of Appeals applies the dissent of Glover v. Jackson State University......7 4. The Court of Appeals should reconsider the issue of ratification.. 8 5. Defendant Turner did not move for summary judgment on the issue of ratification.... 9 6. The Court of Appeals should reconsider its opinion on the extension of deadlines......10 CONCLUSION....10 CERTIFICATE OF SERVICE... 11 2
TABLE OF AUTHORITIES CASES Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986)...4 Doe v. Stegall, 757 So. 2d 201 (Miss. 2000)....4, 5,6 Edmond v. State, 35 So. 3d 536 (Miss. Ct. App. 2009) writ of certiorari dismissed by 24 So. 3d 1176 (Miss. 2010)...6,7 Glover v. Jackson State Univ., 968 So. 2d 167 (Miss. 2007)... passim Jackson v. Daley, 739 So. 2d 1031 (Miss. 1999) 5 Jones v. B.L. Development Corp., 940 So. 2d 961 (Miss. Ct. App. 2006).9-10 Levens v. Campbell, 733 So.2d 753 (Miss. 1999)..7 Palmer v. Biloxi Regional Medical Center, Inc. 649 So. 2d 179 (Miss. 1994)... 8 Royal Oil Co. v. Wells, 500 So. 2d 439 (Miss. 1986) 9,10 Utz Running & Rolling Trucking, Inc., 32 So. 3d 450 (Miss. 2010)... 7 Watkins v. Miss. Dep t of Human Servs., 132 So. 3d 1037, (Miss. 2014)..5,6 United States v. Roach, 590 F.2d 181 (5 th Cir. Ct. 1979)...7 RULES Mississippi Rule of Civil Procedure 56...9 Mississippi Rule of Evidence 601 6,7 Mississippi Rules of Evidence 803... 7 Mississippi Rules of Evidence 804... 7 Uniform Rules of Circuit and County Court Practice 4.03..8 3
ARGUMENT The Court of Appeals should reconsider its Opinion dated March 29, 2016 for the following reasons: (1) it weighed evidence, which is the function of a jury and not the court; (2) it excluded the statements of the Defendant s employee/caretaker; (3) it applied the dissent of a case as controlling authority; (4) it excluded controlling case law on issue of ratification; and, (5) it did not address the Plaintiff s second issue. 1. The Court of Appeals should reconsider its decision, because it weighed evidence. The Court of Appeals held that the Plaintiff has provided no evidence [Defendant Turner] had any prior knowledge Swinney had a propensity for the type of violent behavior to which he pled guilty. Court of Appeals Opinion, p. 8, 14. The Court of Appeals stated it did not consider testimony of the employee/caretaker of Defendant Turner, because it was vague. Id. at 15. Finally, the Court of Appeals held that the Plaintiff had not provided sufficient evidence that the employee was caretaker when Gibson made those statements. Id. The Supreme Court has held that credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge, when he is ruling on a motion for summary judgment. Anderson v. Liberty Lobby, Inc. 477 U.S. 242, 255 (1986). In Doe v. Stegall, 757 So. 2d 201 (Miss. 2000), a trial court granted a motion for summary judgment for the defendant concluding the defendant had provided the plaintiff with reasonably safe premises. Id. at 204. The trial court in its ruling did not consider the testimony of the assailant, because it was unreliable due to the following factors: (1) the assailant initially confessed to entering the apartment through an unlocked window; (2) during the sexual assault, the assailant told the plaintiff he had entered through an unlocked window; (3) the assailant 4
attempted to bargain with plaintiff s counsel where he would testify about a pass key in exchange for a reduced sentence; (4) the assailant perjured himself regarding a letter to plaintiff s counsel requesting assistance on his sentence; and (5) the assailant, after being served with a court order to produce the key, informed the court, that he could not produce a key that didn t exist. Id. The Mississippi Supreme Court articulated that prior inconsistent statements speak to the credibility or reliability of a witness s testimony but not to his/her ability or competency to testify. Id. at 205. It also articulated that the weight and credibility of a witness s statement are the proper province of the jury, not the judge. Id. citing Jackson v. Daley, 739 So. 2d 1031, 1039 (Miss. 1999). The Mississippi Supreme Court reversed the trial court by stating that while the assailant s testimony can be easily impeached... that is an issue of credibility proper for determination by a jury, not by the trial court or this Court. Id. It further held that while the assailant made contradictory statements, that fact alone does not eliminate his testimony from raising an issue of material fact. Id. at 205-6. In Watkins v. Miss. Dep t of Human Servs., 132 So. 3d 1037, 1044-5, (Miss. 2014), the trial court granted summary judgment holding [i]n the absence of unambiguous proof that a report of suspected abuse or neglect was received by DHS, DHS cannot be held liable for any alleged negligent failure to reopen Austin s case. Id. at 1045. The Mississippi Supreme Court held that the trial court erred because credibility is a question of fact that must be decided by the jury. Id. (citation omitted). The weight and credibility of a witness s statement are the proper province of the jury, not the judge. Watkins at 1044 citing Doe v. Stegall, 757 So. 2d 201, 205 (Miss. 2000). Thus, the Mississippi Supreme Court in Watkins stated the plaintiff did not need to present unambiguous proof to defeat summary judgment. Watkins at 1045. 5
In the case at bar, the Court of Appeals should reconsider its decision to disregard the testimony of the Defendant s former caretaker. First, the Court of Appeals determination that the caretakers testimony is vague weighs the credibility and is improper at summary judgment. If a convicted felon s testimony that might have committed perjury, cannot be excluded for summary judgment, then the employee of the Defendant s testimony cannot be. Second, the fact that the former employee recanted his testimony on cross examination of his deposition creates a prior inconsistent statement that speaks to the credibility or reliability of his testimony and not to his ability or competency to testify. Thus, based on the instruction of Doe and Watkins, the Court of Appeals should reconsider excluding the former employee s testimony. 2. The other tenant s statement creates a dispute of material fact. The Court of Appeals should reconsider the exclusion of the other tenant s testimony, because it contradicts the Mississippi Rules of Evidence and controlling authority. The Court of Appeals stated the former caretaker discounted the other tenant s claims of Defendant Swinney harassing her to tears, as she wasn t right and had exhibited unstable behavior in the past, such as running naked in the parking lot, throwing clothes in the dumpster, and setting her apartment on fire. Court of Appeal s Opinion, 16. First, while the caretaker s deposition clearly contains the section the Court of Appeals cites in its opinion, the trial court nor the Appellee/Defendant Turner used a competency argument. Even if they did, this argument would fail under Mississippi Rule of Evidence 601. A minor child with a diminished I.Q. was competent to testify. Edmond v. State, 35 So. 3d 536 (Miss. Cit. App. 2009), writ of certiorari dismissed by 34 So. 3d 1176, (Miss. 2010). See also (United States v Roach 590 F2d 181, (5 th Cir. 1979). (Under Rule 601 it is doubtful that mental incompetence would be grounds for 6
disqualification of prospective witness since nowhere in Federal Rules of Evidence is mental competence mentioned as possible exception; thus, there seems no longer to be any occasion for judicially-ordered psychiatric examinations or competency hearings of witnesses--none, at least, on theory that preliminary determination of competency must be made by a court.). Second, the Court of Appeals did not address how the statements and actions of the other tenant are not admissible evidence under the knowledge of the former caretaker. See Utz v. Running & Rolling Trucking, Inc., 32 So. 3d 450 (Miss. 2010)(Testimony was not hearsay, because it was personal observation and knowledge.) Even if the Court ruled that it was not actual knowledge, then it was admissible hearsay for summary judgement motions. Levens v. Campbell, 733 So.2d 753, 758 (Miss. 1999); M.R.E. 803 & 804. Thus, the Court of Appeals should reconsider its opinion. 3. The Court of Appeals applies the dissent of Glover v. Jackson State University The Court of Appeals should reconsider its application of Glover v. Jackson State University, 968 So. 2d 1267 (Miss. 2007). In its opinion, the Court of Appeals finds that the alleged statements made by are insufficient to impute any knowledge to Turner that Swinney had the propensity to commit sexual assault. See Glover, 968 So. 2d 1267, 1287 ( 76)(finding that the employer had no knowledge of the [the defendants ] propensity even though there [was] conflicting evidence as to whether [the employer] knew of the [defendants ] propensities to fight[.] ). Court of Appeal s Opinion dated March 29, 2016, p. 8 15. However, this application of Glover is erroneous, because it cites Justice Easley s dissent. (The dissent starts at paragraph 60 of the opinion.) In Glover, a fourteen-year-old girl filed suit against the university for being raped by two fifteen-year-old boys on campus. The trial court granted summary judgment for the defendant because the plaintiff s injuries were not foreseeable Id. In reversing the trial court s decision, 7
the Glover court held that both the boys violent tendencies, coupled with the sixty-three crimes which were reported to have occurred on the JSU campus during the three months prior to the rape a fact-finder could find that JSU failed to provide adequate supervision and security on its premises. Id. at 1279. The Glover court further stated that our law only requires a defendant to foresee, not the particular violent or sexual act, but that some violent act or impermissible sexual act might occur. Id. Applying Glover, if summary judgment is not appropriate due to the fact that defendant should have foreseen a rape from a propensity to fight from two teenagers, then summary judgment is not appropriate for Defendant Turner when he had knowledge that his employee, Defendant Swinney, had a propensity to harass another tenant to tears. Thus, the Court of Appeals should reconsider in applying the holding of Glover and not the dissent. 4. The Court of Appeals should reconsider the issue of ratification. The Court of Appeals did not address and should reconsider how it upheld a summary judgment for Defendant Turner on the issue of ratification, when Defendant Turner did not make any legal argument or present any undisputed facts on the subject of ratification as required by the Uniform Rules of Circuit and County Court Practice 4.03. To further evidence that Defendant Turner did not move for summary judgment nor provide any facts on the issue of ratification, for the first time in this litigation, Defendant Turner in his Appellee Brief provided the reason that he did not punish Defendant Swinney. Appellee s Brief, p. 19. In Palmer v. Biloxi Regional Medical Center, Inc. 649 So. 2d 179, 181 (Miss. 1994), a trial court could not have granted summary judgment, because the nonmoving party did not receive proper notice of a summary judgment hearing, pursuant to Mississippi Rule of Civil Procedure 56(c). 8
Thus, if the Court of Appeals does not reconsider its opinion upholding summary judgment on an issue that Defendant Turner provided his material facts for the first time in his Appellee Brief, the Plaintiff will have both federal and state procedural due process rights violated. 5. Defendant Turner did not move for summary judgment on the issue of ratification. The Court of Appeals should reconsider the issues of ratification. The Court of Appeals stated that Jones v. B. L. Dev. Corp., 940 So. 2d 961 (Miss. Ct. App. 2006) should not apply to this matter, because, in Jones, the notorious conduct by the employee was known to the supervisor, but to several others as well. See Court of Appeal s Opinion dated March 29, 2016, p. 11, 20. The Court of Appeals further states that Jones is not applicable, because the sexual harassment was aided by his position as an agent of the employer. Id. First, under the correct application of Glover, there is a reasonable question of fact that Defendant Turner knew about Defendant Swinney harassing another tenant during his previous employment, before he was hired, or during his current employment. These three possibilities create a question of fact for the jury under Jones. Second, there is a reasonable question of fact whether Defendant Swinney gained entry to the Plaintiff s apartment by using his employment. R. 329-331. Thus, the facts of Jones are analogous to the Plaintiff s version of the events in this case, and therefore, the Court of Appeals should reconsider their opinion, and apply Jones. Second, the Court of Appeals should reconsider the application of Royal Oil Co. v. Wells, 500 So. 2d 439, 446 (Miss. 1986). In Footnote 10, the Court of Appeals stated that the facts of Royal Oil Co., are not applicable to this case, because the employee acted with authority in Royal and did not have authority in the case at bar. Court of Appeal s Opinion dated March 29, 2016, p. 11, FN 10. However, the Court of Appeals has already recognized in Jones that a company 9
can ratify an employee s actions that were not in the scope of his employment. If this Court has established in Jones that ratification can occur to an employee s actions that occurred out of the scope of his employment, then this Court should recognize that, pursuant to Royal, the fact an employer does not reprimand or implement any discipline to an employee for an intentional tort is evidence of ratifying that intentional tort. See Royal Oil, 500 So. 2d at 446. This evidence creates a dispute of fact that must be resolved by a jury. 6. The Court of Appeals should reconsider its opinion on the extension of deadlines. Since Glover dictates that Defendant Turner had notice of Defendant Swinney s violent nature, and thus, the Defendant s Turner motion for summary judgment should be denied, then the Court of Appeals should reconsider the its ruling on the trial court s decision on the Plaintiff s motion for extension of time. Also, if the Court of Appeals deems Glover not to apply, the issue is not moot, because the case is still active against Defendant Swinney. CONCLUSION For the above stated reasons, this Court should reconsider its Opinion dated March 29, 2016 and should reverse the trial court s order granting summary judgment for Defendant Turner, reverse the order denying the motion for the extension of all deadlines, and remand the matter back for trial. Respectfully submitted, /s Brent Hazzard Brent Hazzard MSB #99721 10
Hazzard Law, LLC P.O. Box 24382 Jackson, MS 39211 Tel: 601.977.5253 Fax: 601.977.5253 Sorie Tarawally (MSB# 7429) Attorney at Law P.O. Box 31027 Jackson, Mississippi 39286-1027 Telephone: 601 906-0352 facsimile: 866 347-6746 Kelly Williams The Law Office of Kelly G. Williams, PLLC 2630 Ridgewood Road, Ste. C Jackson, MS 39216 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing Appellant s Motion to Reconsider has been served via MEC to all parties of record and a copy has been mailed to Judge Emfinger at P.O. Box 1885, Brandon, MS 39043. This April 28, 2016. s/ Brent Hazzard 11